B-164347, SEPT. 10, 1968

B-164347: Sep 10, 1968

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TO STANDARD PHARMACAL CORPORATION: FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF MAY 16. WAS ISSUED ON FEBRUARY 6. THE SOLICITATION WAS AMENDED TO ALLOW CANS AS AN ALTERNATE IMMEDIATE CONTAINER. THE SOLICITATION WAS CLOSED ON MARCH 1. THE FOLLOWING PROPOSALS WERE RECEIVED. A DEVIATION WAS APPROVED ON MARCH 7. SECOND ROUND NEGOTIATIONS WERE CONDUCTED WITH WINTHROP AND YOUR FIRM WITH THE REVISED SPECIFICATIONS CONSIDERED. THE SECOND ROUND CLOSED AND THE FOLLOWING OFFERS WERE RECEIVED: NAME UNIT PRICE TERMS WINTHROP ?60 FOB ORIGIN NET .63 FOB ORIGIN FREIGHT PREPAID STANDARD ?55 FOB ORIGIN FREIGHT NET PREPAID THEREAFTER. A PRE-AWARD SURVEY WAS REQUESTED OF ALDRICH CHEMICAL COMPANY. ONE OF YOUR COMPANY'S REPRESENTATIVES NOTIFIED THE PURCHASING AGENT THAT YOUR FIRM WAS ABLE TO SUPPLY BOTTLES IN LIEU OF CANS.

B-164347, SEPT. 10, 1968

TO STANDARD PHARMACAL CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF MAY 16, 1968, AND YOUR LETTER OF JUNE 13, 1968, PROTESTING AWARD TO ANY OTHER OFFEROR UNDER REQUEST FOR PROPOSALS NOS. DSA120-68-R-2234 AND DSA120-68-R 3062.

THE FIRST MENTIONED REQUEST, DSA120-68-R-2234, WAS ISSUED ON FEBRUARY 6, 1968, BY THE DEFENSE PERSONNEL SUPPORT CENTER (DPSC) CALLING FOR OFFERS ON 99,072 BOTTLES OF DAPSONE TABLETS, USP, 25 MG., 500-S. DUE TO A SHORTAGE OF BOTTLES BECAUSE OF A STRIKE AMONG GLASS MANUFACTURERS, THE SOLICITATION WAS AMENDED TO ALLOW CANS AS AN ALTERNATE IMMEDIATE CONTAINER. THE SOLICITATION WAS CLOSED ON MARCH 1, 1968, AND THE FOLLOWING PROPOSALS WERE RECEIVED, BOTH FIRMS OFFERING ON CANS:

NAME UNIT PRICE TERMS

WINTHROP LABORATORIES ?60 FOB ORIGIN NET

(WINTHROP) .63 FOB ORIGIN FREIGHT

PREPAID

STANDARD PHARMACAL ?66 FOB ORIGIN FREIGHT NET

(STANDARD) PREPAID

WINTHROP'S PROPOSAL TOOK EXCEPTION TO THE TYPE OF CAN LINER SPECIFIED, AND A DEVIATION WAS APPROVED ON MARCH 7, 1968. ACCORDINGLY, SECOND ROUND NEGOTIATIONS WERE CONDUCTED WITH WINTHROP AND YOUR FIRM WITH THE REVISED SPECIFICATIONS CONSIDERED. ON MARCH 15, 1968, THE SECOND ROUND CLOSED AND THE FOLLOWING OFFERS WERE RECEIVED:

NAME UNIT PRICE TERMS

WINTHROP ?60 FOB ORIGIN NET

.63 FOB ORIGIN FREIGHT

PREPAID

STANDARD ?55 FOB ORIGIN FREIGHT NET

PREPAID

THEREAFTER, ON MARCH 29, 1968, A PRE-AWARD SURVEY WAS REQUESTED OF ALDRICH CHEMICAL COMPANY, INC., THE PROPOSED SUPPLIER OF DAPSONE FOR YOUR FIRM. ON APRIL 2, 1968, ONE OF YOUR COMPANY'S REPRESENTATIVES NOTIFIED THE PURCHASING AGENT THAT YOUR FIRM WAS ABLE TO SUPPLY BOTTLES IN LIEU OF CANS. YOUR REPRESENTATIVE WAS ADVISED TO SUBMIT THE OFFER IN WRITING. LETTER DATED APRIL 2, 1968, YOUR COMPANY REVISED ITS OFFER, BASED ON BOTTLES AT ?582 PER BOTTLE. SINCE THE PRE AWARD SURVEY OF ALDRICH CHEMICAL COMPANY, INC., HAD NOT YET BEEN COMPLETED, FURTHER NEGOTIATIONS WERE DELAYED PENDING RESULTS OF THE SURVEY OF ALDRICH.

ON APRIL 19, 1968, THE SECOND SOLICITATION, DSA120-68-R-3062, WAS ISSUED FOR 75,880 BOTTLES OF DAPSONE TABLETS, 25 MG., 500-S. THIS SOLICITATION WAS BASED ON THE ITEMS BEING FURNISHED IN BOTTLES, SINCE BOTTLES WERE THE PREFERRED CONTAINERS, AND IT THEN APPEARED THAT BOTTLES WERE AVAILABLE. ON MAY 6, 1968, THIS SOLICITATION CLOSED AND THE FOLLOWING OFFERS WERE RECEIVED:

NAME UNIT PRICE TERMS

WINTHROP ?57 2 PERCENT

30 DAYS

STANDARD .582 NET

ON MAY 9, 1968, THE PRE-AWARD SURVEY TEAM ADVISED THE PURCHASING AGENT THAT THEIR SURVEY OF ALDRICH HAD BEEN COMPLETED AND THAT SAID FIRM WAS CONSIDERED TO BE AN ACCEPTABLE SUPPLIER. AT THIS POINT WINTHROP HAD NOT BEEN SOLICITED FOR AN OFFER ON BOTTLES UNDER THE FIRST SOLICITATION. THEREFORE, IN AN EFFORT TO OBTAIN THE BEST POSSIBLE PRICES AND TO REDUCE ADMINISTRATIVE COSTS, IT WAS DETERMINED ON MAY 9, 1968, TO COMBINE THE TWO OPEN SOLICITATIONS FOR A TOTAL QUANTITY OF 173,952 BOTTLES OF THE SOLICITED DRUG. THE FINAL ROUND OF NEGOTIATIONS ON THE COMBINED SOLICITATIONS CLOSED ON MAY 14, 1968, WITH THE FOLLOWING OFFERS RECEIVED:

NAME UNIT PRICE TERMS DELIVERY

WINTHROP ?568 2 PERCENT - 30 DAYS AS REQUIRED

STANDARD .582 2 PERCENT - 30 DAYS AS REQUIRED

ACCORDINGLY, THE AWARD WAS MADE TO WINTHROP ON MAY 16, 1968, AS THE LOW, RESPONSIVE, RESPONSIBLE OFFEROR.

THE BASIS OF YOUR COMPANY'S PROTEST AGAINST SUCH AWARDS, AS STATED IN THE LETTER OF JUNE 13, 1968, IS: "FROM ANNEX -A-, IT WILL BE NOTED THAT ON THE TWO MOST RECENT PROCUREMENTS OF DAPSONE TABLETS, STANDARD PHARMACAL CORPORATION WAS UNDOUBTEDLY THE LOW OFFEROR ON AT LEAST ONE OF THE SOLICITATIONS. IF WE HAD NOT BEEN, BOTH SOLICITATIONS WOULD HAVE PROMPTLY BEEN AWARDED TO OUR LARGE BUSINESS COMPETITOR. "THEREFORE, A VIOLATION OF 3-507.2 (B) ASPR OCCURRED BY THE MERE FACT OF AFFORDING OUR LARGE BUSINESS COMPETITOR THE CHANCE TO REVISE HIS PRICE. WE DO NOT CONTEND THAT THE CONTRACTING OFFICER TOLD OUR COMPETITOR TO LOWER HIS BID, OR EVEN SO IMPLIED. WE DO CONTEND THAT THE MERE FACT OF RESOLICITING PRICES WHEN ALL OFFERS WERE CLEARLY FAIR AND REASONABLE AS DEFINED IN 3-805.1 (A) (V) ASPR GIVES OUR LARGE BUSINESS COMPETITOR AN INSUPERABLE ADVANTAGE. THE NET RESULT IS THAT AUCTION TECHNIQUES ARE SUBTLY EMPLOYED SINCE OUR COMPETITOR HAS BEEN PLACED ON NOTICE THAT HIS PRICE IS TOO HIGH, OTHERWISE HE WOULD HAVE BEEN AWARDED THE CONTRACTS.'

IN RESPONSE TO YOUR CONTENTIONS, IT WAS ADMINISTRATIVELY REPORTED THAT: " * * * PAGE TWO OF THE PROTEST LETTER CHARGES VIOLATIONS OF ASPR 3-507.2/B) AND 3-805.1/A) (V). IT IS ALLEGED THAT STANDARD WAS UNDOUBTEDLY THE LOW OFFEROR ON AT LEAST ONE OF THE TWO MOST RECENT SOLICITATIONS, AND, IF IT HAD NOT BEEN, -* * * BOTH SOLICITATIONS WOULD HAVE PROMPTLY BEEN AWARDED TO OUR LARGE BUSINESS COMPETITOR.- THERE HAVE BEEN SEVEN SOLICITATIONS FOR DAPSONE TABLETS BY DPSC BUT BECAUSE THE LAST TWO WERE COMBINED, THERE HAVE BEEN ONLY SIX AWARDS. STANDARD BECAME LOW ON R-2234 ONLY AFTER SECOND ROUND NEGOTIATIONS, WHEREIN BOTH FIRMS WERE ASKED TO OFFER ON REVISED SPECIFICATIONS AND REVISED DELIVERIES. STANDARD REDUCED ITS PRICE ?11 AND BECAME LOW. WINTHROP DID NOT CHANGE ITS PRICE. AT THIS POINT, AN AWARD, IF MADE, WOULD HAVE GONE TO STANDARD. HOWEVER, BOTTLES HAD THEN BECOME AVAILABLE AND AN OFFER ON BOTTLES WAS SUBMITTED BY STANDARD. THIS OFFER (AT ?582) WAS ?032 HIGHER THAN STANDARD'S OFFER ON CANS AND HIGHER THAN ANY PRIOR AWARD PRICE TO WINTHROP. THE ORIGINAL SOLICITATION ASKED FOR CANS OR BOTTLES IN THE ALTERNATIVE. "ORIGINAL OFFERS SUBMITTED BY BOTH FIRMS WERE FOR CANS. TO HAVE ALLOWED STANDARD TO SUBMIT AN OFFER ON BOTTLES AFTER THE SOLICITATION HAD CLOSED WITHOUT AFFORDING THE SAME OPPORTUNITY TO WINTHROP WOULD HAVE BEEN UNFAIR TO WINTHROP AND WOULD HAVE VIOLATED THE SPIRIT, IF NOT THE LETTER OF ASPR 3-805.1. A PRINCIPAL INTENTION OF THAT PARAGRAPH IS THAT ALL INTERESTED FIRMS WILL BE GIVEN THE OPPORTUNITY TO OFFER ON A TECHNICALLY COMPARABLE BASIS. THIS WAS ACCOMPLISHED IN THIS CASE BY ALLOWING WINTHROP (AND STANDARD) TO SUBMIT REVISED PROPOSALS BASED ON BOTTLES, THE PREFERRED IMMEDIATE CONTAINER. SINCE BOTH SOLICITATIONS WERE THEN BEING MADE FOR THE IDENTICAL ITEM IN IDENTICAL CONTAINERS, IT WAS OBVIOUSLY TO THE GOVERNMENT'S ADVANTAGE TO SEEK A PRICE BREAK ON A COMBINED SOLICITATION. WINTHROP LOWERED ITS PRICE. STANDARD DID NOT, DESPITE THE MUCH LARGER QUANTITY. IT MUST BE STRESSED THAT THERE WERE ABSOLUTELY NO PRICE DISCLOSURES TO EITHER FIRM AND NO AUCTION TECHNIQUES, SUBTLE OR OTHERWISE, WERE EMPLOYED IN MAKING THIS PROCUREMENT.'

IN THE CIRCUMSTANCES, THERE ARE TWO QUESTIONS FOR OUR CONSIDERATION CONCERNING THE NEGOTIATION PROCEDURES UTILIZED BY DPSC: FIRST, WHETHER THERE WAS ANY IMPROPRIETY IN CONSOLIDATING THE TWO SOLICITATIONS; AND SECOND, WHETHER THE PROCEDURES FOLLOWED CONSTITUTED AN AUCTION TECHNIQUE IN VIOLATION OF THE PROHIBITION CONTAINED IN ASPR 3-507.2 (B) AND ASPR 3- 805.1 (B).

WE KNOW OF NO PROHIBITION AGAINST THE CONSOLIDATION OF SOLICITATIONS UNDER FACTS SIMILAR TO THOSE AT HAND. WE HAVE CONSISTENTLY HELD THAT THE ESTABLISHMENT OF SPECIFICATIONS REFLECTING THE ACTUAL NEEDS OF THE GOVERNMENT IS PRIMARILY THE RESPONSIBILITY OF THE AGENCY ON WHOSE BEHALF THE PROCUREMENT IS MADE. 17 COMP. GEN. 554. UNDER THE REPORTED FACTS, WE FEEL THAT THE CONTRACTING OFFICER WAS CLEARLY ACTING IN THE INTEREST OF THE GOVERNMENT IN CONSOLIDATING THE TWO PROCUREMENTS FOR THE SAME ITEM. WHERE THE CONTRACTING OFFICER DETERMINES THAT SUCH ACTION IS IN THE BEST INTEREST OF THE GOVERNMENT, HIS AUTHORITY, AS IN THE REJECTION OF ALL BIDS OR OFFERS, IS EXTREMELY BROAD, INVOLVING PRIMARILY A MATTER OF ADMINISTRATIVE JUDGMENT, AND WE WILL NOT UNDERTAKE TO QUESTION ITS EXERCISE IN THE ABSENCE OF A CLEAR SHOWING OF AN ABUSE OF DISCRETION.

WITH REGARD TO THE QUESTION WHETHER AUCTION TECHNIQUES WERE EMPLOYED, IT MAY BE POINTED OUT THAT NEGOTIATION PROCEDURES, UNLIKE THOSE REQUIRED FOR FORMAL ADVERTISING, ARE DESIGNED TO BE FLEXIBLE AND INFORMAL, AND UNDER 10 U.S.C. 2304 (G) THE CONDUCT OF WRITTEN OR ORAL DISCUSSIONS WITH RESPONSIBLE OFFERORS WHO HAVE SUBMITTED PROPOSALS WITHIN A COMPEITIVE RANGE IS PRESCRIBED AS A PROCEDURAL RULE. THE PROVISIONS OF ASPR 3-507.2 (B) AND 3-805.1 (B), AS YOU KNOW, PROHIBIT THE DISCLOSURE OF PRICES DURING THE NEGOTIATION PERIOD. FROM THE RECORD BEFORE US WE FIND NO BASIS FOR CONCLUDING THAT DPSC IN ANY WAY INVITED OR SUGGESTED PRICE REDUCTIONS, OR CREATED OR SUBTLY EMPLOYED AN AUCTION TECHNIQUE.

THERE IS NO UNFAIR ADVANTAGE CONFERRED WHEN BOTH OFFERORS ARE AFFORDED AN EQUAL OPPORTUNITY TO REQUOTE PRICES ON THE BASIS OF NEW PROPOSALS OR SOLICITATIONS. THE POSTPONEMENT OF FURTHER NEGOTIATIONS UNDER R-2234 WAS NOT IRREGULAR, PARTICULARLY WHERE THE DEFERRAL OF NEGOTIATIONS WAS CAUSED PARTIALLY BY THE NEED TO CONDUCT A PRE-AWARD SURVEY OF YOUR SUPPLIER. INASMUCH AS YOUR OWN LAST VOLUNTARY PROPOSAL ON THAT PROCUREMENT DISCLOSED THE AVAILABILITY OF BOTTLES, THE DETERMINATION TO DISCONTINUE CONSIDERATION OF CANS AND TO COMBINE THE QUANTITY SOLICITED UNDER THAT SOLICITATION WITH THE QUANTITY BEING SIMULTANEOUSLY SOUGHT UNDER THE SECOND RFP, IN THE HOPE OF OBTAINING BETTER PRICES FOR THE COMBINED LARGER QUANTITY, IS NOT SUBJECT TO LEGAL OBJECTION.

FOR THE FOREGOING REASONS, YOUR PROTEST AGAINST THE SUBJECT PROCUREMENT IS DENIED.

YOU ALSO COMPLAIN OF A SERIES OF ACTIONS TAKEN OVER THE PAST SEVERAL YEARS BY THE PROCURING AGENCY WITH RESPECT TO THE SOLICITED ITEM WHICH YOU CLAIM HAVE RESULTED IN ALL AWARDS BEING GIVEN TO A SINGLE LARGE BUSINESS IN VIOLATION OF 10 U.S.C. 2301. YOU FURTHER CONTEND THAT BECAUSE OF THE STRINGENT REQUIREMENTS CONCERNING THE MANUFACTURE OF THE ITEM, AND THE QUALITY CONTROL AND HOUSEKEEPING STANDARDS, AN ASTONISHINGLY LARGE PROPORTION OF AWARDS MUST BE GOING TO OTHER THAN LOW BIDDERS. ALSO, YOU ALLEGE THAT YOUR EXPERIENCE HAS SHOWN A REPEATED VIOLATION OF SECTION 3- 804 OF THE ARMED SERVICES PROCUREMENT REGULATION BY FAILURE TO COMPLETE THE EVALUATION OF OFFERS EXPEDITIOUSLY.

WITH REFERENCE TO THE PRIOR PROCUREMENTS, YOU ARE ADVISED THAT WHILE A BIDDER OR OFFEROR MAY PROTEST DIRECTLY TO THE COMPTROLLER GENERAL A PROPOSED OR ACTUAL AWARD OF A CONTRACT ADVERSELY AFFECTING HIM, SUCH A PROTEST SHOULD BE SUBMITTED PROMPTLY IN ORDER THAT A DECISION ON THE MERITS OF THE PROTEST MIGHT SERVE A PRACTICAL PURPOSE. SINCE WE HAVE NO RECORD THAT YOUR COMPANY SUBMITTED PROTESTS AGAINST SUCH AWARDS AT THE TIME THEY WERE MADE, WE MUST ASSUME THAT YOU DID NOT THEN CONSIDER THE AWARDS OR THE ACTION TAKEN IMPROPER. IN ANY EVENT, THE PROCURING AGENCY HAS FURNISHED A DOCUMENTED REPORT IN RESPONSE TO YOUR COMPLAINTS, PERTINENT PARTS OF WHICH ARE AS FOLLOWS:

"PARAGRAPH ONE OF PAGE TWO OF THE PROTEST LETTER COMBINES STATEMENTS CONCERNING THE PERCENTAGE OF SMALL BUSINESS CONTRACT AWARDS IN FSC CLASS 6505 AND THE NUMBER OF FIRMS WHICH HAVE HAD FAILING PRE-AWARD SAMPLES OR WHICH HAVE FAILED ON SURVEY. THE TWO SUBJECTS ARE UNRELATED BUT COMMENTS REGARDING THEM ARE REQUIRED. A REVIEW OF THE TOTAL PROGRAM EXPANDED FOR FSC CLASS 6505 ITEMS AND THE PERCENTAGE ACHIEVED BY SMALL BUSINESS CONCERNS OVER THE PAST SEVERAL YEARS INDICATES THAT THERE IS NO CONSISTENT RELATIONSHIP BETWEEN THE TWO:

FY FSC 6505 PERCENT TO SB

62 $ 45,704,516 13.1 PERCENT

63 35,143,606 21.0 PERCENT

64 43,524,258 10.3 PERCENT

65 65,400,00011.0 PERCENT *

66 122,100,000 10.0 PERCENT

67 92,400,000 11.0 PERCENT

68 105,340,000 7.9 PERCENT ** * APPROXIMATE FIGURE. ** DRUG BRANCH ONLY, FINAL FIGURES NOT YET AVAILABLE. INDICATIVE OF THE FACTORS INFLUENCING THIS RELATIONSHIP IS THAT THE FIGURE FOR 1963 INCLUDES A NON-RECURRING PURCHASE OF $2,821,850 FOR ATROPINE INJECTION FROM A SMALL BUSINESS CONCERN. THESE RESULTS HAVE ALSO BEEN AFFECTED MATERIALLY BY THE EVER- INCREASING TREND IN THE DRUG FIELD OF ESTABLISHED SMALL FIRMS SELLING CONTROL TO LARGE BUSINESS CORPORATIONS WHO DECIDE TO EXPAND OR DIVERSIFY THEIR ACTIVITIES. REGARDING THE FIRMS FAILING ON SAMPLES OR PRE-AWARD SURVEYS, IT MUST BE REMEMBERED THAT PRE-AWARD SAMPLES AND SURVEYS ARE NOT REQUIRED ON EVERY SOLICITATION, NOR ARE THEY LIMITED TO SMALL BUSINESS FIRMS. AS A GENERAL RULE, SAMPLES OR SURVEYS WILL BE REQUESTED IN THOSE CASES WHERE THE BIDDER OR OFFEROR HAS NOT DEMONSTRATED THE ABILITY TO MAKE THE PARTICULAR ITEM INVOLVED AND IT IS IN THE GOVERNMENT'S INTEREST TO ESTABLISH THAT ABILITY PRIOR TO AWARD. ADMITTEDLY, THE DPSC STANDARDS ARE HIGH, HOWEVER, SO IS THE RISK. * * * IT IS THE CONTRACTING OFFICER'S OBLIGATION TO ESTABLISH THAT A PROSPECTIVE CONTRACTOR IS RESPONSIBLE PRIOR TO AWARD. IN CONNECTION WITH SOLICITATIONS R-2234 AND R-3062, THE RESPONSIBILITY OF STANDARD PHARMACAL CORP. HAD BEEN ESTABLISHED. HAD THE FIRM BEEN LOW OFFEROR, STANDARD WOULD HAVE RECEIVED THE AWARD. THE ENTIRE DPSC PRE AWARD SURVEY HISTORY FOR STANDARD HAS BEEN ASSEMBLED AND IS ATTACHED. * * * IT WILL SHOW THAT THE DETERMINATIONS OF NON- RESPONSIBILITY THAT WERE MADE, WERE NOT ARBITRARY BUT WERE, IN FACT, BASED ON SPECIFIC FINDINGS BY QUALIFIED GOVERNMENT PERSONNEL.

"ANNEX -A- OF THE STANDARD PHARMACAL CORP. (LETTER OF JUNE 13, 1968), RELATES ITS EXPERIENCE IN ATTEMPTING TO OBTAIN AN AWARD FOR DAPSONE TABLETS FROM DPSC. DAPSONE TABLETS WERE STANDARDIZED AND THE ITEM TRANSFERRED TO DPSC FOR PURCHASE IN 1966. TWO PROCUREMENTS WERE ACCOMPLISHED BY DPSC LATE IN THAT YEAR. IT IS TRUE THAT IN 1966, STANDARD WAS CONSIDERED AN ACCEPTABLE SUPPLIER TO DPSC OF AZULFIDINE (SALICYLAZO- SULFA PYRIDINE) TABLETS. IT SHOULD BE NOTED HOWEVER, THAT THE RECORD OF QUALITY DEFICIENCIES AT THE STANDARD PLANT * * * REQUIRED THAT THE COMPANY BE SURVEYED BEFORE ITS RESPONSIBILITY FOR OTHER ITEMS COULD BE ESTABLISHED. IT IS ALSO TRUE THAT ALL DPSC AWARDS FOR DAPSONE TABLETS HAVE BEEN MADE TO WINTHROP LABORATORIES. HOWEVER, AGAIN IT SHOULD BE NOTED THAT WINTHROP HAS BEEN A RESPONSIBLE SUPPLIER THROUGHOUT THIS PERIOD.'

CONCERNING YOUR ALLEGATION OF REPEATED VIOLATION OF ASPR 3-804, IT IS ADMINISTRATIVELY EPORTED:

"IN THE FIRST PARAGRAPH OF PAGE THREE OF THE PROTEST LETTER, STANDARD ALLEGES THAT THEIR BIDDING EXPERIENCE ON DAPSONE TABLETS HAS SHOWN A REPEATED VIOLATION OF ASPR 3-804. THIS REGULATION REQUIRES, AMONG OTHER THINGS, THAT NEGOTIATIONS SHALL BE COMPLETED EXPEDITIOUSLY. THE RECORD IS AS FOLLOWS:

NO. DAYS

-------- SOLICITATION NO. CLOSING DATE AWARD DATE ELAPSED --------- -----

------- DSA120-67-R-1852 17 NOV 66 8 DEC 66 21 DSA120-67-Q-D371

1 FEB 67 17 FEB 6717 DSA120-68-Q-C204 5 FEB 68 28 MAR 68

52 DSA120-68-R-2234 1 MAR 68 16 MAY 68 47 DSA120 68-R-3062 6 MAY 68 16 MAY 68 10 THE ELAPSED TIME OF 52 DAYS ON C204 BREAKS DOWN AS FOLLOWS: THE SOLICITATION CALLED FOR BOTTLES BUT, DUE TO THE GLASS STRIKE, NO RESPONSIVE OFFERS WERE RECEIVED. THE SPECIFICATION WAS REVISED TO PERMIT CANS AND A SECOND ROUND OF NEGOTIATIONS WAS CONDUCTED, CLOSING 21 FEB 68.

* * * * * * * THE LOW OFFEROR, WINTHROP LABORATORIES, TOOK EXCEPTION TO THE LINER SPECIFIED IN THE ALTERNATE METHOD OF PACKAGING. THIS DEVIATION WAS APPROVED ON 7 MARCH 1968. A THIRD ROUND OF NEGOTIATIONS WAS CONDUCTED, INCORPORATING THE DEVIATION, AND CLOSING ON 14 MARCH 1968.

* * * * * * *THE TECHNICAL OPERATIONS BRANCH HAD PREVIOUSLY DETERMINED THAT PRE-AWARD SAMPLES AND PRE-AWARD SURVEY WOULD BE REQUIRED OF ALDRICH CHEMICAL CO. A REQUEST WAS THEN MADE TO THE SUPPLY OPERATIONS BRANCH FOR A STUDY OF THE STOCK SITUATION TO DETERMINE WHETHER THERE WAS TIME TO TEST SAMPLES AND CONDUCT A SURVEY IN THIS PRIORITY PROCUREMENT. WHEN THE SUPPLY OPERATIONS BRANCH ADVISED ON 27 MARCH 1968 THAT THE SUPPLY SITUATION ON THIS ITEM WAS CRITICAL AND THE ITEM WAS IN BACK ORDER, THE DETERMINATION WAS MADE TO MAKE THE AWARD ON THE BASIS OF URGENCY TO THE KNOWN RESPONSIBLE SOURCE. A CERTIFICATE OF URGENCY WAS PREPARED AND PLACED IN THE FILE * * *.'

IN THE LIGHT OF THE ADMINISTRATIVE REPORT, WE ARE UNABLE TO CONCLUDE THAT THE PRIOR PROCUREMENT PRACTICES OF DPSC WERE NOT CONDUCTED IN CONFORMITY WITH THE LAW AND PERTINENT REGULATIONS.